Chapter Thirteen: Constitutions And The Legal Framework

Chapter Notes

Causes of the judicialization of politics: post-authoritarian constitution-making, the influence of the EU, the growth of international law and increasing judicial assertiveness The rule of law and due process. Common and civil (Roman Law) codes and their underlying values.

Constitutions: power-limiting and power-maps. How constitutional documents are arranged. Codified or uncodified; rigid (entrenched) or flexible? Procedures for amendment: typically, a special majority in the legislature plus approval by the states in federations and by referendum in unitary countries. Adaptation by convention (flexible constitutions) or through the courts (rigid constitutions).

Judicial review: abstract and concrete. Using ordinary supreme courts (e.g. USA) or special constitutional courts (e.g. Germany). Judicial decisions not self-implementing. The European Court of Justice as a constitutional court that helped to build a transnational order.

The rise of judicial activism in response to the declining weight of other institutions and ideologies and the rise of international conventions. The contrast with judicial restraint. Cross-national variations in judicial activism: USA vs. Britain.

Origins of constitutions: fresh starts built on messy compromises. Most successful when limited in their ambition and detail. Danger of fighting the last war and of giving too little power to new rulers.

Judicial independence and recruitment. Methods of selecting judges: balancing independence and responsiveness. The political dimension of recruitment to courts charged with judicial review. Judges as surprise packets. Need for internal independence to overcome the vulnerability of junior judges to their seniors.

Judicial decision-making. The legal model: judges constrained by what is legally coherent. The attitudinal model: judges’ decisions reflect their liberal or conservative outlook. The strategic model: judges take into account the likely reaction to their decisions (rule of anticipated reactions). In practice, judges mix these considerations but legal ambiguity is inherently great on issues reaching the high court .

Limits on the judiciary in authoritarian regimes. Techniques for downgrading the judiciary, including Declarations of Emergency and military courts. China becoming more sympathetic to law, at least where the party remains unthreatened. But still rule through law rather than by law. Some development of law, including greater professionalism, in hybrid regimes, especially business law when political interests are not involved. But accountability of the president remains vertical (to the voters) rather than horizontal (to the judiciary).

Multiple choice questions

Essays and term papers

What role does, should and will the judiciary play in democratic governance?

Is the United States Supreme Court or the European Court of Justice more influential?

Hague & Harrop, 2013 edn, ch. 13.

K. Alter, The European Court’s Political Power: Selected EssaysV. Bogdanor, Constitutions in Democratic PoliticsR. Dehousse, The European Court of JusticeA. Guarnieri and P. Pederzoli, The Power of Judges: A Comparative Study ofCourts and Democracy K. Holland, Judicial Activism in Comparative PerspectiveH. Jacob et al., Courts, Law and Politics in Comparative PerspectiveD. O'Brien, Storm Center: The Supreme Court in Democratic PoliticsT. Peretti, In Defence of a Political CourtM. Shapiro and A. Stone Sweet, On Law, Politics and JudicializationA. Stone Sweet, Governing with Judges: Constitutional Politics in Europe